AD4: defense counsel must (still) make specific TOD and renew it at the close of all proof to preserve sufficiency arguments on appeal

Once again driving home what should (by now) be a settled matter of practice for New York criminal defense attorneys, the Fourth Department twice this term found legal sufficiency arguments unpreserved for review based on defense counsel's failure to make a specific motion for a trial order of dismissal and/or failing to renew that motion at the close of all proof. (See Picente, 2006 NY Slip Op 09806 [legal sufficiency argument not preserved where defense counsel's TOD motion "did not seek dismissal of the counts at issue on [the] ground" advanced on appeal]; Skupien, 2006 NY Slip Op 09890 ["Defendant failed to specify the basis for seeking dismissal of the remaining counts and therefore failed to preserve for our review his contention that the evidence is legally insufficient with respect to those counts"].)

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This Blog was founded by Eric M. Dolan, Esq., in April of 2005. Mr. Dolan, a former member of the Monroe County Public Defender's Appeals Bureau, maintained the blog until 2007. He now has an active criminal law practice as an associate at Trevett Cristo Salzer & Andolina, P.C., in Rochester, New York.

From September 2007 to December 2008, this blog was maintained by Brian Shiffrin, Esq. Mr. Shiffrin is now a partner in the firm of Easton Thompson Kasperek Shiffrin LLP, a law firm dedicated to criminal defense.

From January 2009 until May of 2011, this blog was maintained by David M. Abbatoy, Jr., Esq. Mr. Abbatoy recently established THE ABBATOY LAW FIRM, PLLC, and concentrates his practice in appellate advocacy, post-conviction remedies, and criminal defense. You can find the firm on the web at www.abbatoy.com or contact Mr. Abbatoy by email at dma@abbatoy.com.

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